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George Vs. thekkekkara Vareed - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberE.S.A. No. 59 of 1976
Judge
Reported inAIR1979Ker1
ActsEvidence Act, 1872 - Sections 115; Code of Civil Procedure (CPC) , 1908 - Sections 21 and 99; ;Kerala Land Reforms Act, 1964 - Sections 3(1), 7B, 125(1) and 125(3)
AppellantGeorge
Respondentthekkekkara Vareed
Appellant Advocate T.S. Venkiteswara Iyer and; P.K. Balasubramanyan, Advs.
Respondent Advocate C.S. Ananthakrishna Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredOffl. Liquidator v. V. M. Deshpande
Excerpt:
.....1971 would not be a bar against urging that the question of tenancy should be settled only by the land tribunal, an actual decision on the question by the civil court, without reference to the tribunal, would at best, be only an irregularity or illegality, and not one without jurisdiction; we guard ourselves against being understood as having either endorsed this opinion or as having expressed ourselves on the point. it is generally, especially in the latter case -only where the defect complained of has occasioned a failure of justice (vide the principle of sections 21 & 99 of the c. it was also argued that the non obstante clause in section 13 of the act, conferring fixity of tenure, or in section 7-b thereof, would not get rid of the fundamental principles or doctrines like res..........the defendant is a tenant under act 1 of 1964 or not had to be referred for decision of the land tribunal. after this remand, the execution court again ruled that the defendant was not entitled to fixity and that he is bound to deliver possession. on appeal, the lower appellate court allowed the appeal and vacated the finding of the execution court and directed the execution court to refer that question for decision to the concerned land tribunal under section 125 (3) of the act. this appeal is against the said judgment.3. we quote section 125 of the land reforms act.'125. bar of jurisdiction of civil courts.-- (1) no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this act required to be settled,.....
Judgment:

Gopalan Nambiyar, C.J.

1. This appeal arises in execution and has been referred to a Full Bench in view of the importance of the questions involved. The Division Bench has not stated the points of importance. The learned Single Judge who referred the case to a Division Bench referred to the decision of the Supreme Court in Eapen Chacko v. Provident Investment Co. (P) Ltd., (1977 Ker LT 1) : (AIR 1976 SC 2610) and observed that the decision gave no indication as to whether an execution proceeding can be regarded as a continuation of the suit so as to make it a pending proceeding in a case where the suit was decreed prior to 1-1-1970, (the relevant date for the purposes of this case), and the execution commenced after that date. The learned Judge referred to a number of decisions as having been cited by Counsel in support of the contention that although the suit was itself decreed prior to 1-1-1970 the execution proceedings had to be regarded as pending even if initiated only after that date. As against this, the learned Judge noticed the decision of Raman Nayar J. of this Court cited on the other side, in New Model Bank Ltd. v. P. A. Thomas (AIR 1960 Ker 243), where the learned Judge's observations sound in a different direction. It was in view of this that the reference was made to a Division Bench.

2. The decree-holder in O. Section 559 of 1960 on the file of the Wadakkencherry Munsiff's Court is the appellant in this Second Appeal. The suit was as a reversioner of a limited owner, for recovery of possession of an item of property on title. The defendant claimed fixity of tenure under the proviso at the end of Section 3 (1) (vii) of the Act, to the effect that nothing in Clauses (i) to (vii) shall apply to persons who were entitled to fixity of tenure immediately before 21st Jan. 1961 under any law then in force. His contention was that he was entitled to fixity of tenure under the Cochin Varumpat-tomdars Act 1118 M.E. Overruling the contention the suit was decreed on 7-2-1964. An appeal against the decision was dismissed on 15-2-1965; and S. A. No. 916 of 1965 was also dismissed by a Division Bench of this Court on 20-10-1969. (vide Cheru Vareed v. Chakunny (1970 Ker LT 739) : (AIR 1971 Ker 31).) This Court held that the defendant was not entitled to fixity. E. P. No. 143 of 1971 for execution was filed on 10-8-1971 and delivery was taken on 18-8-1971 (without notice, as provided in the Civil Procedure Code). A. S. No. 164 of 1971 was filed against the order directing delivery of possession. By that time the Kerala Act 35 of 1969 had come into force on 1-1-1970. It had effected substantial amendments to the provisions of the Kerala Land Reforms Act. Among them was the introduction of a new Section dealing with 'deemed tenants' viz. Section 7-B. The provision stated that any person in occupation of the land of another on the date of commencement of Act 35 of 1'969 on the basis of a registered deed purporting to be a lease deed shall be deemed to be a tenant, if he or his predecessor was in occupation on the 11th April 1957 on the basis of the deed, despite the fact that the lease was by a person who had no right over the land or was not competent to grant the same. By judgment dated 2-10-1973, A. S. No. 164 of 1971 was allowed, and the execution court was asked to consider the respondent's claim of tenancy under the amended Act, It considered and negatived the claim. On appeal, the appellate court remanded the matter back to the execution court holding that in view of the provisions of Act 35 of 1969, and in particular of the amendments effected by it to Section 125 of the Land Reforms Act, the question whether the defendant is a tenant under Act 1 of 1964 or not had to be referred for decision of the Land Tribunal. After this remand, the execution court again ruled that the defendant was not entitled to fixity and that he is bound to deliver possession. On appeal, the lower appellate court allowed the appeal and vacated the finding of the execution court and directed the execution court to refer that question for decision to the concerned Land Tribunal under Section 125 (3) of the Act. This appeal is against the said judgment.

3. We quote Section 125 of the Land Reforms Act.

'125. Bar of jurisdiction of civil courts.-- (1) No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government :

Provided that nothing contained in this sub-section shall apply to proceedings pending in any court at the commencement of the Kerala Land Reforms (Amendment) Act, 1969.

(2) No order of the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an Officer of the Government made under this Act shall be questioned in any civil court, except as provided in this Act.

(3) If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran (including a question as to whether a person is a tenant or a kudikidappukaran) arises, the civil court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the Land or part thereof is situate together with the relevant records for the decision of that question only.

(4) The Land Tribunal shall decide the question referred to it under Sub-section (3) and return the records together with its decision to the civil court.

(5) The civil court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it.

(6) The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the civil court.

(7) No civil court shall have power to grant injunction in any suit or other proceeding referred to in Sub-section (3) restraining any person from entering into or occupying or cultivating any land or kudikidappu or to appoint a receiver for any property in respect of which a question referred to in that Sub-section has arisen, till such question is decided by the Land Tribunal and any such injunction granted or appointment made before the commencement of the Kerala Land Reforms (Amendment) Act, 1969, or before such question has arisen, shall stand cancelled.

(8) In this section, 'civil court' shall Include a Rent Control Court as defined in the Kerala Buildings (Lease and Rent Control) Act, 1965.'

Counsel for the appellant argued that in view of the judgment in A. S. No. 164 of 1971 which had become final and conclusive, it was not open to the Respondent to contend, or to the lower appellate court to find, that the question of tenancy should be referred for decision to the Land Tribunal. The judgment referred, had directed the matter to be decided by the execution court; and the appellant had submitted to that decision; and had not raised either before the execution court after remand, or in his grounds of appeal against its decision that the Land Tribunal alone should have dealt with the question of tenancy. To the bar of finality arising from the judgment in A. S. No. 164 of 1971 was added a plea of waiver of the rights under Section 125 (3). Next, it was urged that Section 125 (3) had no application, as the proviso to Section 125 (1) had expressly exempted proceedings pending at the commencement of Act 85 of 1969. Finally, it was argued that the Division Bench ruling in Cheru Vareed's case 1970 Ker LT 739 : (AIR 1971 Ker 31) had found that the defendant was not entitled to fixity; and the said findings must' operate as res judicata, with the result that no question of tenancy would 'arise' within the meaning of Section 125 (3) for being referred for determination by the Land Tribunal. We shall proceed to examine these contentions.

4. First as to the bar of finality of the judgment in A. S. No. 164 of 1971. That judgment in para 2 referred to the amendments effected by Act 35 of 1969 and Act 25 of 1971 and observed that it would be improper to go into the question whether the defendant would be a tenant within the amended definition and that the matter will have to be considered by the execution court. The order recording delivery was set aside and the Court directed to consider whether the defendant was a tenant under Act I of 1964. We entertain no doubt that properly read and understood, this order of remand directed consideration of the question of tenancy in the light of Act 1 of 1964 as amended by Act 35 of 1969 and Act 25 of 1971. Bar of finality and conclusiveness of this judgment is urged with respect to Section 105 (2) of the Code of Civil Procedure; and on the general principles of res judicata. We do not think that the respondent is in any way precluded by this judgment. We have explained the true scope and effect of the judgment. On its own terms, it would not preclude the execution court from dealing with the matter in the light of the amendments, and referring the mater to the Land Tribunal if the provisions of the Statute so required.

5. Section 108 (3) of the Land Reforms Act, as amended by the Acts 35 of 1969 and 25 of 1971. in so far as is relevant, reads :

'188 (3) -- If in any suit, application, appeal, revision, review, proceedings in execution of a decree or other proceedings pending at the commencement of this section before any court, tribunal, officer or other authority, any person claims any benefit, right or remedy conferred by any of the provisions of the principal Act or the principal Act as amended by this Act, such suit, application, appeal, revision, review, proceedings in execution or other proceedings shall be disposed of in accordance with the provisions of the principal Act as amended bv this Act.'

There is thus a statutory mandate to dispose of in accordance with the provisions of the amended Act. We do not think that the judgment in A. S. No. 164 of 1971 either on its terms and scope, or read in the light of Section 108 (3), would preclude the respondent from raising the question of tenancy. As for the plea of waiver, we do not think that in the region of the provisions of a complicated statute of the type of the Land Reforms Act, and the recent nature of the amendments effected, so closely prior to the disposal by the execution court -- that the mere omission to urge before the execution court to make a reference to the Land Tribunal would amount to a waiver of the right.

6. It was contended that even if the judgment in A. S. No. 164 of 1971 would not be a bar against urging that the question of tenancy should be settled only by the Land Tribunal, an actual decision on the question by the civil court, without reference to the Tribunal, would at best, be only an irregularity or illegality, and not one without jurisdiction; so that, the interests of justice did not require the appellate court to set aside the judgment of the execution court. As authority for the proposition that the defect was only an irregularity or illegality and not one of a jurisdictional nature, Counsel cited the judgment of a Full Bench of this Court in Alavi v. Radha Varasyaramma (1976 Ker LT 691). The Full Bench, after explaining the observations of a prior Full Bench in Ananthanarayana Iyer v. Paran (1976 Ker LT 403), and in Lissy v. Kuttan (1976 Ker LT 571) (FB). held that the judgment or order of a court or other proceeding passed without compliance with the provisions of Section 125 (4) and (5) is not a nullity and cannot be ignored as void. We guard ourselves against being understood as having either endorsed this opinion or as having expressed ourselves on the point. Whether it was a jurisdictional defect or a procedural illegality or irregularity, in either case, correction by an appellate court was open; it is generally, -- especially in the latter case --, only where the defect complained of has occasioned a failure of justice (vide the principle of Sections 21 & 99 of the C. P. C.). We are not prepared to say, in second appeal, that the discretion exercised by the lower appellate court in remanding the proceedings was unsound. New rights had intervened, and a new forum of adjudication had been provided which justified the remand, We see no ground to interfere in second appeal.

7. It was then urged that in S. A. No. 916 of 1969 (1970 Ker LT 739) : (AIR 1971 Ker 311 this Court has held that the lease in question was exempt under Section 3 (1) (vi) of the Act, as a lease granted by a person having only a life interest or other limited interest, and as not saved by the proviso to Section 3 (1) (vii) of the Act. This finding, it was said, had become res judicata, and therefore a question of tenancy would not 'arise' for determination so as to be referred for decision by the Land Tribunal under Section 125 (3) of the Act. For this latter proposition that a question which has been barred by res judicata cannot be said to 'arise' within Section 125 (3), reliance was placed on a decision of one of us (Bhas-karan J.) in George v. Chakkunni (1977 Ker LT 865). The decision supports that proposition. To the same effect is the principle of the judgment of the Full Bench in Govindan Gopalan v. Raman Gopalan (1978 Ker LT 315) : (AIR 1978 Ker 217) that where a question of tenancy had been once decided by the Land Tribunal and the matter comes up for consideration again before a Civil Court, the same cannot be said to 'arise' for consideration so as to make a reference under Section 125 (3), necessary. It was also argued that the non obstante clause in Section 13 of the Act, conferring fixity of tenure, or in Section 7-B thereof, would not get rid of the fundamental principles or doctrines like res judicata, or lis pendens. Reliance was placed for this position on N. Krishna Pillai v. State Bank of Travancore (1967 Ker LT 188) and Mohamed Mytheen v. Sreedharan (1976 Ker LT 919) (FB). The latter is a Full Bench decision binding on us as far as lis pen-dens is concerned. On the principle of the rulings cited and noticed. Counsel is well founded in his submission that a matter which had become res judicata, cannot be said to 'arise', so as to be referred to the Tribunal under Section 125 (3). We shall assume, without consideration, that the earlier decision of Raman Nayar, J., lays down correct law. But the difficulty for the appellant is : Had the question of the tenancy right now set up by the appellant been decided on the earlier occasion so as to be barred by res judicata? We think, not. The question mooted on the prior occasion in 1970 Ker LT 739 : (AIR 1971 Ker 31), was only whether the respondent was entitled to fixity of tenure under Section 13 of the Land Reforms Act by reason of his claims for fixity of tenure under Section 4 of the Cochin Varumpattomdars Act, read with the proviso after Section 3 (1) (vii). This p]ea was negatived by our judgment on 29-10-1969. That was rendered long prior to the two Acts -- 35 of 1969 and 25 of 1971 -- which had introduced substantial amendments to the Land Reforms Act. By one of them Section 7-B under which the respondent now claims fixity of tenure was introduced. In such circumstances, we cannot hold that the decision in 1970 Ker LT 739 : (AIR 1971 Ker 31), operates as res judicata against respondent's claim of rights which sprang into existence subsequent to the decision.

8. Counsel for the appellant would then contend that under Section 3 (1) (vi) of the Land Reforms Act, leases granted by a limited owner are exempt altogether from the provisions of Chap. II of the Act; and hence, a provision for fixity such as what i's contained in Section 7-B of the Act, cannot operate on a lease granted, as in this case, by a limited owner, without a corresponding amendment of Section 3 (1) (vi). Counsel for the respondent, rightly urged that, whatever be the merits of this plea, the question of the applicability of the exemption as also the plea of fixity have both to be referred to the Land Tribunal under Section 125 (3). For this he placed reliance on Lissy v. Kuttan (1976 Ker LT 571) (FB). That decision followed a prior ruling in Narayana Menon v. Kallandi (1973 Ker LT 983), which had laid down the same principle. Counsel for the respondent is right in his submission and is supported by the decisions. We accept the same.

9. There remains the question whether the proviso to Section 125 (1) of the Act would apply to exclude the operation of the Section on the ground that the proceedings were pending at the commencement of Act 35 of 1969. Counsel for the appellant would contend that execution proceedings are a continuation of the suit, and as the suit had been both instituted, and decreed finally in Second Appeal, on 29-10-1969 as noticed, prior to Act 35/1969, the execution proceedings, started and continued thereafter, were a mere continuation of the suit and therefore there was no fresh commencement of proceedings by taking out execution. On the other hand, Counsel for the Respondent contended that execution proceedings are proceedings separate from, and independent of, the suit, and that under Section 125 of the Act with which we are concerned, what is material is to see the nature and the character of the proceedings in relation to which the applicability of Section 125 arises for consideration. We were taken through a number of decisions which have dealt with the meaning of the expression 'proceeding'. We think it unnecessary to refer to all these. The position, we think had been correctly noted by Mulla at page 246 of the C. P. C. where the learned Author observes that an appeal or an execution are only continuations of the suit. But this is stated in reference to the applicability of the principle of 'lic pendens' to appeals and executions. In Governor-General in Council v. Shiromani Sugar Mills Ltd. (AIR 1946 FC 16), the question arose as to the scope of the expression 'legal proceedings' under Section 171 of the Indian Companies Act, 1913, which provided that after a winding up order, no suit or other legal proceedings shall be proceeded with or commenced against the company except by leave of Court, and subject to such terms as the Court may impose. It was observed :

'... ... ... ... ... In our judgment, it need not, and therefore should not, be confined to 'original proceedings in a Court of first instance, analogous to a suit, initiated by means of a petition similar to a plaint.' Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act. In particular, we would refer to Section 232. Section 232 appears to us to be supplementary to Section 171 by providing that any creditor (other than Government) who goes ahead, notwithstanding a winding up order or in ignorance of it, with any attachment, distress, execution or sale, without the previous leave of the Court, will find that such steps are void. The reference to 'distress' indicates that leave of the Court is required for more than the initiation of original proceedings in the nature of a suit in an ordinary Court of law, moreover, the scheme of the application of the company's property in the pari passu satisfaction of its liabilities, envisaged in Section 211 and other sections of the Act, cannot be made to work in co-ordination, unless all creditors (except such secured creditors as are 'outside the winding up' in the sense indicated by Lord Wrenbury in his speech in 1923 AC 647 at p. 671, are subjected as to their actions against the property of the company to the control of the Court. Accordingly, in our judgment, no narrow construction should be placed upon the words 'or other legal proceeding' in Section 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with ordinary suits against the company.' The comprehensiveness of the scope of 'legal proceeding' thus expounded had been somewhat qualified in S. V. Kondaskar, Offl. Liquidator v. V. M. Deshpande, Income-tax Officer, Companies Circle I (8) Bombay (AIR 1972 SC 878), which excluded income-tax assessment proceedings from its scope. Applying the above principle and relating the same to the scheme of the Land Reforms Act, we find that the Act refers to different types of proceedings, such for instance as, suits, appeals, revisions, review, proceedings in execution of a decree, etc. (See for instance Section 108 (3) which we have already quoted). We think in the circumstances that the pendency of the proceedings must be judged with special reference to the proceedings in relation to which the applicability of Section 125 arises. As the question here arises in execution proceedings, the point for consideration is, whether the execution proceedings were pending on the date of the commencement of the Act 35 of 1969. Admittedly they were not, as the execution petition E. P. 143 of 1971 was filed only on 10-8-1971 and delivery was taken on 18-8-1971.

10. It follows therefore that the proviso to Section 125 (1) is not attracted and that the lower appellate court was correct in directing a remand and an investigation in the light of the provisions of Section 125 of the Act. We see no ground to interfere with the judgment under appeal. We dismiss the appeal with costs.


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